India's three new laws related to criminal acts

Reference

• India's three new criminal laws passed by Parliament in December 2023 have come into effect from July 1, 2024.
• These three laws were presented in the Parliament on August 11, 2023 by Union Home Minister Amit Shah.
• These new laws focus on ‘justice rather than punishment’ and aim to provide speedy justice, strengthen the judicial and court management system and emphasize on ‘access to justice’ in all aspects.

Why are new laws needed?

• Since independence, several amendments have been made to the colonial-era Indian Penal Code (IPC: provides the essence of criminal law), the Code of Criminal Procedure (CrPC: provides the procedure for enforcement of law) and the Evidence Act.
• However, the desired results have not been achieved due to certain inherent deficiencies in the criminal justice system, including poor level of investigation and prosecution, high pendency of criminal cases, delay in court proceedings, delay in disposal of cases, low conviction rate and high number of undertrial prisoners.
  • According to the Supreme Court, speedy trial is a part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution.
• Keeping these shortcomings in mind and keeping in mind the needs of the Indian society the Government of India has introduced new criminal laws.

Indian Judicial Code, 2023

• The Indian Judicial Code (BNS) has replaced the 164-year-old Indian Penal Code (IPC), 1860. The BNS has 358 sections instead of 511 sections (provisions) in the IPC.
• Some sections of the IPC have been amended, some new sections have been added and some sections have been repealed in the BNS.
• Around 21 new crimes have also been introduced under this. Some notable points of this code are as follows:

Punishing sexual intercourse through ‘fraudulent means’

• According to this Act, whoever by deceit or fraudulently promises to marry a woman has sexual intercourse with her without the intention of fulfilling the same, shall be punishable with imprisonment of up to 10 years and also fine.
• ‘Fraudulent practices’ also include false promises of employment or promotion, inducement or marriage by concealing identity, etc.
• However, critics say this could criminalise consensual relationships in some cases and promote the concept of 'love jihad'.

A transformative approach to reporting crimes against women through electronic First Information Reports (e-FIRs)

• This helps in faster reporting of crimes that require immediate attention.
• The electronic platform aligns with the evolving socio-legal approach aimed at empowering victims to navigate the legal process without fear of stigma.
• Other judicial precedents including the Harpal Singh case (1981) shed light on identifying social factors influencing delays in reporting.

Sexual intercourse with a minor wife amounts to rape

• The IPC made only one exception for marital rape, which referred to sexual intercourse with a wife under the age of 15.
• In the same sequence, in the year 2017, the Supreme Court had held that this limit of 15 years is contrary to the child rape laws under the POCSO Act.
• In fact, the new law addresses the grey area for married girls aged 15-18 years.

For the first time, murder on the basis of race, caste or community as a separate offence

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Inclusion of crimes such as organised crime and terrorism

• Earlier, there was a specific and stringent law like Unlawful Activities Prevention Act (UAPA) for terrorist activities. However, BNS has incorporated many aspects of UAPA in case of terrorism.
• Organised crime covers any unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber crime involving serious consequences as well as trafficking of persons, drugs, illegal goods or services, weapons, prostitution or human trafficking rackets for ransom.
  • However, it is still important to address vague descriptions such as ‘cybercrime with serious consequences’.

Snatching: A new crime different from theft

• Snatching is defined as the act of suddenly or quickly or forcibly seizing or taking away any movable property from a person or his possession by the offender in order to commit theft.
• Both theft and snatching are punishable with up to three years in prison.

Putting crimes against women before crimes against the state

• Under the IPC, crimes against the state were ranked before crimes against women and crimes against the body.
• However, in the BNS crimes against women are included in Chapter V, before crimes against the state.

Introduction of ‘community service’ as an alternative to punishment for certain crimes

• This includes petty theft, defamation and attempt to commit suicide with the intent to prevent a public servant from discharging his duty, etc.
• Community service as a punishment keeps first-time convicts and those convicted of minor crimes out of prison.
• However, the BNS does not define what constitutes community service and leaves it to the discretion of judges.

Indian Civil Defence Code, 2023

• The Indian Civil Services Code (BNSS) replaces the Code of Criminal Procedure (CrPC), 1898-1973, which deals with procedural law.
• The BNSS has 531 sections as compared to 484 in the CrPC. Some of the changes included in it are as follows:

Duration of judicial decision

• Judgments in criminal cases must be delivered within 45 days of the completion of the trial and charges must be framed within 60 days of the first hearing.
• Also, medical experts examining rape victims must submit their reports to the investigating officer within seven days.

Checks and balances on police powers

• To prevent misuse of the provisions relating to arrest by the police, the BNSS has introduced an additional obligation on the state government to designate a police officer.
• This officer will be responsible for maintaining information about all arrests and arrestees.
• Accordingly, such information is required to be prominently displayed in every police station and district headquarters.

Extension of police custody period

• A major change in the BNSS is the increase in the time limit for the period of police detention. The time limit prescribed in the CrPC was 15 days, which has now been increased to 60 days and in some special cases, up to 90 days.

Opportunity to be heard to the aggrieved party

According to BNSS, in cases where the punishment is seven years or more, the victim will be given an opportunity to be heard before the government withdraws the case.

Trials in absentia

• Now a person accused of a crime can be tried and convicted in his absence, as if he were present in the court and has waived his right to a fair trial for all crimes.
• However, such a provision already exists under the UAPA, where the burden of proof in a terrorist act lies on the accused; that is, the responsibility to prove oneself innocent rests on the accused.
• Critics argue that the initiation of a trial in absentia under normal criminal law allows the State to evade its duty to properly trace the accused before the start of the trial.

Regarding bail

• Under the BNSS, a first-time offender (who has never been convicted of any crime before) will be released on bail if he has served one-third of the maximum sentence prescribed.
• Further, it also abolishes statutory bail for an accused if he has more than one offence to his name. 

Reducing overcrowding in prisons

• The maximum period of detention for first-time undertrials has been reduced under certain circumstances.
• Also, the jail superintendent has been legally empowered to help the accused or undertrials apply for bail.

Zero FIR

BNSS also allows filing of 'Zero FIR', wherein any person can lodge a First Information Report (FIR) at any police station, irrespective of the jurisdiction.

Right to information to a person of his/her choice

Under the new law, a person has the right to inform a person of his choice about his situation in case of arrest. This can ensure immediate help and support to the arrested person.

Electronic Summons

Under the BNSS, summons can be served electronically. It also mandates all state governments to implement the witness protection scheme.

Indian Evidence Act, 2023

The Indian Evidence Act, 1872 has been replaced by the Indian Evidence Act (BSA), 2023. It brings changes in the way evidence is processed.

Permission for electronic and digital records   

• It covers a wide range of electronic records, including emails, server logs, files stored on a computer, laptop or smartphone, website content, location data and text messages, etc.
• It also allows oral evidence to be taken electronically. Additionally, the statement of the victim will be recorded through audio-video means to provide greater protection to the victim and bring transparency in the investigation related to the crime of rape.

Expansion of the scope of secondary evidence

• The Act also expanded the term ‘secondary evidence’ to include oral and written confessions.
• It states that secondary evidence shall include ‘evidence of a person who has examined a document, the original of which contains several accounts or other documents which cannot easily be examined in court and who is skilled in examining such documents’.

Grey areas in the new law

• Through all three laws, the government has said that ‘sedition’ has been abolished.
• In May 2022, the Supreme Court virtually halted the operation of the sedition law and held it ‘prima facie unconstitutional’.
• But, despite the government’s claims, BNS has introduced a broader definition of the offence and renamed the law in Hindi from rajadroh (rebellion against the king) to deshdroh (rebellion against the nation).

Criticisms

Lack of protection provision regarding sexual harassment of men

• In keeping with its progressive approach, BNS has completely dropped the controversial Section 377 of the IPC, which criminalises ‘carnal intercourse against the order of nature’.
• This provision was struck down in 2018 by the Supreme Court in its landmark Navtej Singh Johar vs Union of India judgement, decriminalising homosexual relationships.
  • However, Section 377 was still invoked to punish non-consensual sex, often the only recourse for men in cases of rape.
• In fact, there are very few criminal provisions for male victims of sexual assault due to the exclusion of this provision from the BNS and rape laws still not being made gender-neutral.

Discretionary prosecution

• Police officers are given wide discretion to choose between prosecuting under new laws or existing statutes such as the UAPA (Unlawful Activities Prevention Act), without clear guidelines.
• This discretion can lead to inconsistent application and raise questions about fairness and accountability.

Vaguely defined crimes

• The new laws introduce vaguely worded offences relating to terrorism, organised crime and acts endangering sovereignty.
• Such broad definitions leave scope for arbitrary law enforcement and could potentially infringe upon fundamental rights such as freedom of speech and personal liberty.

Expanded definition of terrorism

• The definition of ‘terrorism’ has been expanded beyond the existing UAPA to include acts that ‘disturb public order’ or ‘destabilise the country’.
• This expanded scope increases the risk of abuse and raises concerns about legal consequences for dissent and protest.

Confusion due to new laws

• Many legal experts say the new laws may create confusion as they will run parallel to cases prosecuted under the previous regime.
• In fact, if the date of the offence is before July 1, 2024, the trial will be conducted as per the old laws and for offences occurring on/after July 1, 2024, the trial will be conducted under the new laws.

judicial powers to the police

• Experts say the new laws give police the power to decide whether a case can proceed to trial.
• In contrast, previously this was decided by a judge.

The modern nature of the new law

• The new law modernises the law and requires video recording in the case of serious crimes. It also updates admissible digital evidence. 
• In fact, experts believe these changes could lead to a 30-40% increase in the number of cases awaiting trial.

Violation of Constitutional provisions and Supreme Court judgements

According to legal experts, the new laws violate at least four Articles of the Constitution and several important Supreme Court judgements dealing with procedural safeguards, protection against illegal detention and laws against self-incrimination.

Lack of training among lawyers and police officers

• Experts believe there is no formal training available for most lawyers and police officers.
• Judges have training programmes at their judicial academy. However, there is no proper mechanism in states other than Delhi to train lawyers.

The argument for freedom from colonial law

Most of these new laws currently in force are a part of the old Penal Code. Thus, the claim that these changes have decolonised the Criminal Procedure Code is not entirely true.